SECTION 1. WHAT IS THE PURPOSE OF THIS
REVENUE PROCEDURE?

.01 This revenue procedure explains when and how Employee Plans
Technical or Exempt Organizations Technical issue technical advice
memoranda (TAMs) to an Employee Plans (EP) Examinations Area manager,
an Exempt Organizations (EO) Examinations Area manager, an Employee
Plans (EP) Determinations manager, an Exempt Organizations (EO) Determinations
manager, or an Appeals Area Director in the employee plans areas (including
actuarial matters) and exempt organizations areas. It also explains
the rights a taxpayer has when an EP or EO Examinations Area manager,
an EP or EO Determinations manager, or an Appeals Area Director requests
a TAM regarding a tax matter. Similarly, this revenue procedure may
be used by another Operating Division of the Service involved in an
examination where EP Technical does not have audit jurisdiction but
has interpretive jurisdiction as enumerated in section 6.02 of Rev.
Proc. 2009-4, page of this Bulletin.

.02 Although taxpayer participation during all stages of the
process is preferred, it is not required in order to request technical
advice.

SECTION 2. WHAT SIGNIFICANT CHANGES
HAVE BEEN MADE TO REV. PROC. 2008-5?

This revenue procedure is a general update of Rev. Proc. 2008-5,
2008-1 I.R.B. 164, which contains the general procedures for technical
advice requests for matters within the jurisdiction of the Commissioner,
Tax Exempt and Government Entities Division.

SECTION 3. WHAT IS THE DEFINITION OF
TECHNICAL ADVICE?

“Technical advice” means advice or guidance in the
form of a memorandum furnished by the Employee Plans Technical or
Exempt Organizations Technical office, (hereinafter referred to as
“EP or EO Technical”), upon the request of an EP or EO
Examinations Area manager, an EP or EO Determinations manager or an
Appeals Area Director submitted in accordance with the provisions
of this revenue procedure in response to any technical or procedural
question that develops during any proceeding on the interpretation
and proper application of tax law, tax treaties, regulations, revenue
rulings, notices or other precedents published by the headquarters
office to a specific set of facts. (The references in this revenue
procedure to an Appeals Area Director or an appeals office include,
when appropriate, an Appeals Area Director, LMSB, a Deputy Appeals
Area Director, LMSB, a Deputy Appeals Area Director, an Appeals Team
Manager and include in employee plans matters another Operating Division
of the Service described in the last sentence of section 1.01 above.)
Such proceedings include (1) the examination of a taxpayer’s
return, (2) consideration of a taxpayer’s claim for refund or
credit, (3) a taxpayer’s request for a determination letter,
(4) any other matter involving a specific taxpayer under the jurisdiction
of EP or EO Examinations, EP or EO Determinations, or an appeals office
or (5) processing and considering nondocketed cases of a taxpayer
in an appeals office. However, they do not include cases in which
the issue in the case is in a docketed case for any year.

For purposes of TAMs, the term “taxpayer” includes
all persons subject to any provision of the Internal Revenue Code
(including tax-exempt entities such as governmental units which issue
municipal bonds within the meaning of § 103), and when appropriate,
their representatives. However, the instructions and the provisions
of this revenue procedure do not apply to requests for TAMs involving
any matter pertaining to tax-exempt bonds or to § 457 plans
maintained by state or local governments or tax-exempt organizations
or to mortgage credit certificates. Instead, in those instances the
procedures under Rev. Proc. 2009-2, page , this Bulletin must be followed.

TAMs help Service personnel resolve complex issues and help
establish and maintain consistent holdings throughout the Internal
Revenue Service. An EP or EO Examinations, an EP or EO Determinations
or an appeals office may raise an issue in any tax period, even though
technical advice may have been requested and furnished for the same
or similar issue for another tax period.

Technical advice does not include oral or written legal advice
furnished to the EP or EO Examinations or the EP or EO Determinations
or the appeals office, other than advice furnished pursuant to this
revenue procedure. In accordance with section 12.01 of this revenue
procedure, a taxpayer’s request for referral of an issue to
the headquarters office for technical advice will not be denied merely
because EP or EO Technical has already provided legal advice, other
than advice furnished pursuant to this revenue procedure, to the EP
or EO Examinations or the EP or EO Determinations or the appeals office
on the matter.

Although taxpayer participation during all stages of the process
is preferred, generally, it is not required in order to request a
TAM.

SECTION 4. ON WHAT ISSUES MAY OR MUST
TAMs BE REQUESTED UNDER THIS PROCEDURE?

Issues under the jurisdiction of the
Commissioner, Tax Exempt and Government Entities Division

.01

Generally, the instructions of this revenue procedure apply
to requests for TAMs on any issue under the jurisdiction of the Commissioner,
Tax Exempt and Government Entities Division.

Farmers’ cooperatives

.02

If an EP or EO Examinations, an EP or EO Determinations, an
appeals office or a taxpayer requests technical advice on a determination
letter under § 521 of the Code, the procedures under this
revenue procedure, Rev. Proc. 2008-9, 2008-2 I.R.B. 258, as well as
§ 601.201(n) of the Statement of Procedural Rules (26 CFR
§ 601.201(n) (2007)), must be followed.

Basis for requesting TAMs

.03

Requests for TAMs are encouraged on any technical or procedural
questions arising in connection with any case of the type described
in section 3 at any stage of the proceedings in an EP or EO Examinations,
an EP or EO Determinations or an appeals office case that cannot be
resolved on the basis of law, regulations, or a clearly applicable
revenue ruling or other published precedent.

Areas of mandatory technical advice

.04

Requests for § 7805(b) relief are mandatory TAMs with
respect to all exempt organizations and employee plans matters.

Regarding exempt organizations matters, EO Examinations, EO
Determinations and appeals offices are required to request a TAM on
their exempt organization cases concerning qualification for exemption
or foundation status for which there is no published precedent or
for which there is reason to believe that non-uniformity exists.
(Exemption application cases handled in EO Technical in accordance
with Rev. Procs. 72-5, 80-27, or 2007-52 are not covered by this provision.)
A request for a TAM is not required if the Director, EO Examinations
proposes to revoke or modify (1) a letter ruling found to be in error
or not in accord with the current views of the Service, or (2) a letter
recognizing tax-exempt status issued by the headquarters office.

Regarding employee plans matters, a request for a TAM is required
in cases concerning (1) proposed adverse or proposed revocation letters
on collectively-bargained plans, (2) plans for which the Service is
proposing to issue a revocation letter because of certain fiduciary
actions that violate the exclusive benefit rule of § 401(a)
of the Code and are subject to Part 4 of Subtitle B of Title I of
the Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406,
1974-3 C.B. 1, 43, or (3) amendments to defined contribution plans
pursuant to Rev. Proc. 2004-15, 2004-1 C.B. 490, in connection with
a waiver of the minimum funding standard and a request for a determination
letter (see section 15 of Rev. Proc. 2009-6,
page , this Bulletin, and section 3.04 of Rev. Proc. 2004-15).

SECTION 5. ON WHAT ISSUES MUST TAMS
BE REQUESTED UNDER DIFFERENT PROCEDURES?

.01

All procedures for obtaining TAMs on issues (other than farmers’
cooperatives) under the interpretive jurisdiction of the Associate
Chief Counsel (Corporate), the Associate Chief Counsel (Financial
Institutions & Products), the Associate Chief Counsel (Income
Tax & Accounting), the Associate Chief Counsel (International),
the Associate Chief Counsel (Passthroughs & Special Industries),
or the Division Counsel/Associate Chief Counsel (TE/GE), and on certain
issues under the jurisdiction of the Associate Chief Counsel (Procedure &
Administration), including any matter pertaining to (1) tax-exempt
bonds or mortgage credit certificates, (2) deferred compensation plans
under § 457, (3) § 526 of the Code (shipowners’
protection and indemnity associations), (4) § 528 (certain
homeowners’ associations), (5) Indian tribal governments, (6)
federal, state or local governments, and (7) issues involving the
interpretation or application of the federal income tax laws and income
tax treaties relating to international transactions are contained
in Rev. Proc. 2009-2.

Alcohol, tobacco, and firearms taxes

.02

The procedures for obtaining a TAM specifically applicable to
federal alcohol, tobacco, and firearms taxes under subtitle E of the
Code are currently under the jurisdiction of the Alcohol and Tobacco
Tax and Trade Bureau within the Treasury Department.

Excise taxes

.03

A TAM regarding excise taxes (other than excise taxes imposed
under Chapters 41, 42 and 43 of the Code), and employment taxes that
employee plans and exempt organizations are subject to, is set forth
in Rev. Proc. 2009-2.

SECTION 6. MAY TAM UNDER § 301.9100-1
BE REQUESTED DURING THE COURSE OF AN EXAMINATION?

A § 301.9100-1 request is a
letter ruling request

.01

Except with regard to exemption application matters involving
§§ 505(c) and 508, a request for an extension of time
for making an election or other application for relief under § 301.9100-1
of the Procedure and Administration Regulations is not a request for
a TAM; instead, the request is submitted as a letter ruling request
even if the request is submitted after the examination of the taxpayer’s
return has begun or after the issues in the return are being considered
by an appeals office or a federal court. Therefore, a § 301.9100-1
request should be submitted pursuant to Rev. Proc. 2009-4, page ,
this Bulletin (including the payment of the applicable user fee listed
in section 6 of Rev. Proc. 2009-8).

Statute of limitations

.02

The running of any applicable period of limitations is not suspended
for the period during which a § 301.9100-1 request has been
filed. See § 301.9100-3(d)(2). If
the period of limitations on an assessment under § 6501(a)
for the taxable year in which an election should have been made, or
any taxable year that would have been affected by the election had
it been timely made, will expire before receipt of a § 301.9100-1
letter ruling, the Service ordinarily will not issue a § 301.9100-1
ruling. See § 301.9100-3(c)(1)(ii).
Therefore, the taxpayer must secure a consent under § 6501(c)(4)
to extend the period of limitations on assessment. Note that the
filing of a protective claim for refund under § 6511 does
not extend the period of limitations on assessment. If § 301.9100-1
relief is granted, the Service may require the taxpayer to consent
to an extension of the period of limitations for assessment. See § 301.9100-3(d)(2).

Address to send a § 301.9100-1
request

.03

Requests made under § 301.9100-1, pursuant to Rev.
Proc. 2009-4, together with the appropriate user fee, must be submitted
to the Internal Revenue Service by the taxpayer and addressed as follows:

A § 301.9100-1 request may also be hand delivered
between the hours of 8:30 a.m. and 4:00 p.m. where a receipt will
be given at the Courier’s Desk. In each instance, the package
should be marked RULING REQUEST SUBMISSION. See Rev. Proc. 2009-8 for the appropriate user fee. Deliver to:

If return is being examined or considered
by an appeals office or a federal court, the taxpayer must notify
EP or EO Technical who will notify the EP or EO Examinations Area
manager, Appeals Area Director or government counsel

.04

If the taxpayer’s return for the taxable year in which
an election should have been made or any taxable year that would have
been affected by the election had it been timely made is being examined
by EP or EO Examinations or the issues in the return are being considered
by an appeals office or a federal court, the taxpayer must notify
EP or EO Technical. See, § 301.9100-3(e)(4)(i)
and section 6.04 of Rev. Proc. 2009-4. EP or EO Technical will notify
the appropriate EP or EO Examinations Area manager or Appeals Area
Director or government counsel considering the return that a request
for § 301.9100-1 relief has been submitted. The EP or EO
specialist, appeals officer or government counsel is not authorized
to deny consideration of a request for § 301.9100-1 relief.
The letter ruling will be mailed to the taxpayer and a copy will
be sent to the appropriate EP or EO Examinations Area manager, or
Appeals Area Director or government counsel.

SECTION 7. WHO IS RESPONSIBLE FOR REQUESTING
TAMs?

EP or EO Examinations Area manager or
EP or EO Determinations manager or Appeals Area Director determines
whether to request the advice

.01

The EP or EO Examinations Area manager, the EP or EO Determinations
manager or the Appeals Area Director determines whether to request
a TAM on an issue. Each request must be submitted through proper
channels and signed by a person who is authorized to sign for the
EP or EO Examinations Area manager, the EP or EO Determinations manager
or the Appeals Area Director. The mandatory technical advice described
in section 4.04(3) of this revenue procedure, for cases concerning
amendments to defined contribution plans in connection with a waiver
of the minimum funding standard and a request for a determination
letter, is treated as if it had been a request for technical advice
submitted by the EP Determinations manager. See section 15 of Rev. Proc. 2009-6 and section 3.04 of Rev. Proc. 2004-15
for the procedural rules applicable to this particular mandatory technical
advice.

Taxpayer may ask that issue be referred
for TAM

.02

While a case is under the jurisdiction of EP or EO Examinations,
EP or EO Determinations, or an Appeals Area Director, a taxpayer may
request that an issue be referred to the EP or EO Technical office
for a TAM.

SECTION 8. WHEN SHOULD A TAM BE REQUESTED?

Uniformity of position lacking

.01

A TAM should be requested when there is a lack of uniformity
regarding the disposition of an issue or when an issue is unusual
or complex enough to warrant consideration by EP or EO Technical.

When can a TAM be requested

.02

Generally, except as provided in section 1.01, the provisions
of this revenue procedure apply only to a case under the jurisdiction
of EP or EO Examinations, EP or EO Determinations or an Appeals Area
Director. A TAM may also be requested on issues considered in a prior
appeals disposition, not based on mutual concessions for the same
tax period of the same taxpayer, if the appeals office that had the
case concurs in the request.

(1) EP or EO Examinations or EP or EO Determinations may not
request a TAM on an issue if an appeals office is currently considering
an identical issue of the same taxpayer (or of a related taxpayer
within the meaning of § 267 or an affiliated group of which
the taxpayer is also a member within the meaning of § 1504).

(2) A case remains under the jurisdiction of EP or EO Examinations
or EP or EO Determinations even though an appeals office has the identical
issue under consideration in the case of another taxpayer (not related
within the meaning of § 267 or § 1504) in an entirely
different transaction. With respect to the same taxpayer or the same
transaction, when the issue is under the jurisdiction of an appeals
office, and the applicability of more than one kind of federal tax
is dependent upon the resolution of that issue, EP or EO Examinations
or EP or EO Determinations may not request a TAM on the applicability
of any of the taxes involved.

(3) EP or EO Examinations or EP or EO Determinations or an Appeals
Area Director, also may not request a TAM on an issue if the same
issue of the same taxpayer (or of a related taxpayer within the meaning
of § 267 or a member of an affiliated group of which the
taxpayer is also a member within the meaning of § 1504)
is in a docketed case for the same taxpayer (or for a related taxpayer
or a member of an affiliated group of which the taxpayer is also a
member) for any taxable year.

At the earliest possible stage

.03

Once an issue is identified, all requests for a TAM should be
made at the earliest possible stage in the proceeding. The fact that
the issue is raised late in the examination, determination or appeals
process should not influence, however, EP or EO Examinations’,
EP or EO Determinations’ or an Appeals Area Director’s,
decision to request a TAM.

SECTION 9. HOW ARE PRE-SUBMISSION CONFERENCES
SCHEDULED?

Pre-submission conference generally is
permitted when a request for TAM is likely and all parties agree
to request the conference

.01

In an effort to promote expeditious processing of requests for
a TAM, EP or EO Technical generally will discuss the issue(s) with
the EP or EO Examinations or the EP or EO Determinations or the appeals
office and the taxpayer prior to the time any request for technical
advice is formally submitted to EP or EO Technical. In all cases,
other than mandatory TAMs which are described in section 4.04, a pre-submission
conference is mandatory.

A request for a pre-submission conference should be made, however,
only after the EP or EO Examinations or the EP or EO Determinations
or the appeals office determines that it will likely request a TAM.

If the request for a TAM will involve more than one function,
representatives from each function involved must participate in the
pre-submission conference.

Purpose of pre-submission conference

.02

A pre-submission conference is intended to facilitate agreement
between the parties as to the appropriate scope of the request for
a TAM or any collateral issues that either should or should not be
included in the request for a TAM, and any other substantive or procedural
considerations that will allow EP or EO Technical to provide the parties
with a TAM as expeditiously as possible.

A pre-submission conference is not intended to create an alternate
procedure for determining the merits of the substantive positions
advocated by the EP or EO Examinations or the EP or EO Determinations
or the appeals office or by the taxpayer. Rather, the conference
is intended only to facilitate the overall process.

Request for pre-submission conference
must be submitted in writing by the EP or EO Examinations or the EP
or EO Determinations or the appeals office

.03

A request for a pre-submission conference must be submitted
in writing by the EP or EO Examinations or the EP or EO Determinations
or the appeals office. The request should identify the office expected
to have jurisdiction over the request for a TAM. The request should
include a brief explanation of the primary issue so that an assignment
to the appropriate group can be made.

Group will contact the EP or EO Examinations
or the EP or EO Determinations or the appeals office to arrange the
pre-submission conference

.04

Within 5 working days after it receives the request, the group
assigned responsibility for conducting the pre-submission conference
will contact the EP or EO Examinations or the EP or EO Determinations
or the appeals office to arrange a mutually convenient time for the
parties to meet (generally by telephone) in the EP or EO Technical
office. The conference generally should be held within 30 calendar
days after the EP or EO Examinations or the EP or EO Determinations
or the appeals office is contacted. The EP or EO Examinations or
the EP or EO Determinations or the appeals office will be responsible
for coordinating with the taxpayer as well as with any other Service
personnel whose attendance the EP or EO Examinations or the EP or
EO Determinations or the appeals office believes would be appropriate.

Pre-submission conference generally held
by telephone

.05

Generally, pre-submission conferences for TAMs are held by telephone
with EP or EO Technical unless the parties specifically request that
the conference be held in person.

Certain information required to be submitted
to EP or EO Technical prior to the pre-submission conference

.06

At least 10 working days before the scheduled pre-submission
conference, the EP or EO Examinations or the EP or EO Determinations
or the appeals office and the taxpayer should submit to EP or EO Technical
a statement of the pertinent facts (including any facts in dispute),
a statement of the issues that the parties would like to discuss,
and any legal analysis, authorities, or background documents that
the parties believe would facilitate EP or EO Technical’s understanding
of the issues to be discussed at the conference. The legal analysis
provided for the pre-submission conference need not be as fully developed
as the analysis that ultimately will accompany the request for a TAM,
but it should allow EP or EO Technical to become reasonably informed
regarding the subject matter of the conference prior to the meeting.
The EP or EO Examinations or the EP or EO Determinations or the appeals
office or the taxpayer should ensure that the EP or EO Technical office
receives a copy of any required power of attorney, on Form 2848, Power of Attorney and Declaration of Representative.

Manner of submitting pre-submission materials

.07

The pre-submission materials must be submitted electronically.
In order to obtain the protection of taxpayer information offered
by the Service’s Intranet “firewall,” the pre-submission
materials must be electronically transmitted by the Service office
assigned to the request.

To the extent that supporting materials cannot be submitted
electronically, such materials should be sent by fax or by express
mail or private delivery service to the tax law specialist or actuary
in Headquarters assigned to the request. In such cases, the appropriate
provisions of section 10.05 should be followed.

Pre-submission conference may not be
taped

.08

Because pre-submission conference procedures are informal, no
tape, stenographic, or other verbatim recording of a conference may
be made by any party.

Discussion of substantive issues is not
binding on the Service

.09

Any discussion of substantive issues at a pre-submission conference
is advisory only, is not binding on the Service, and cannot be relied
upon as a basis for obtaining retroactive relief under the provisions
of § 7805(b).

SECTION 10. WHAT MUST BE INCLUDED IN
THE REQUEST FOR A TAM?

Statement of issues, facts, law, and
arguments

.01

Whether initiated by the taxpayer or by an EP or EO Examinations
or an EP or EO Determinations or an appeals office, a request for
a TAM must include the facts and the issues for which the TAM is requested,
and a written statement that clearly sets forth the applicable law
and the arguments in support of both the Service’s and the taxpayer’s
positions on the issue or issues.

Taxpayer must submit statement if the
taxpayer initiates request for a TAM

(1) If the taxpayer initiates the request for a TAM, the taxpayer
must submit to the EP or EO specialist or appeals office, at the time
the taxpayer initiates the request, a written statement—

If the EP or EO specialist or the appeals office determines
that a TAM will be requested, the taxpayer’s statement will
be forwarded to EP or EO Technical with the request for the TAM.

Taxpayer is encouraged to submit statement
if Service initiates request for a TAM

(2) If the request for a TAM is initiated by an EP or EO Examinations
office or by an EP or EO Determinations office or by an appeals office,
the taxpayer is encouraged to submit the written statement described
in section 10.01(1) of this revenue procedure. If the taxpayer’s
statement is received after the request for the TAM has been forwarded
to EP or EO Technical, the statement will be forwarded to EP or EO
Technical for association with the TAM.

Statement of authorities contrary to
taxpayer’s position

(3) Whether the request for a TAM is initiated by the taxpayer
or by an EP or EO Examinations office or by an EP or EO Determinations
office or by an appeals office, the taxpayer is encouraged to comment
on any legislation, tax treaties, regulations, revenue rulings, revenue
procedures, or court decisions contrary to the taxpayer’s position.
If the taxpayer determines that there are no contrary authorities,
a statement to this effect would be helpful. If the taxpayer does
not furnish either contrary authorities or a statement that none exists,
the Service, in complex cases or those presenting difficult or novel
issues, may request submission of contrary authorities or a statement
that none exists.

General provisions of §§ 6104
and 6110

.02

Generally, § 6104(a)(1)(B) provides that an application
filed with respect to: (1) the qualification of a pension, profit-sharing,
or stock bonus plan under § 401(a) or § 403(a)
or an individual retirement arrangement under § 408(a) or
§ 408(b) will be open to public inspection pursuant to regulations
as will (2) any application filed for an exemption from tax under
§ 501(a) of an organization forming part of a plan or account
described above. Generally, § 6110(a) provides that except
as provided otherwise, written determinations (defined in § 6110(b)(1)
as rulings, determination letters, technical advice memorandums and
Chief Counsel advice) and any related background file document will
be open to public inspection pursuant to regulations.

Application of § 6104

.03

The requirements for submitting statements and other materials
or proposed deletions in TAMs before public inspection is allowed
do not apply to requests for any documents to the extent § 6104
applies.

Statement identifying information to
be deleted from public inspection

.04

The text of a TAM subject to § 6110(a) may be open
to public inspection. The Service deletes certain information from
the text before it is made available for inspection. To help the
Service make the deletions required by § 6110(c), the taxpayer
must provide a statement indicating the deletions desired (“deletions
statement”). If the taxpayer does not submit the deletions
statement, the Service will follow the procedures in section 11.06
of this revenue procedure.

A taxpayer who wants only names, addresses, and identifying
numbers deleted should state this in the deletions statement. If
the taxpayer wants more information deleted, the deletions statement
must be accompanied by a copy of the TAM request and supporting documents
on which the taxpayer should bracket the material to be deleted.
The deletions statement must indicate the statutory basis, under § 6110(c)
for each proposed deletion.

The taxpayer may submit additional deletions statements before
the TAM is issued.

The deletions statement must not appear in the request for a
TAM but, instead, must be made in a separate document.

The deletions statement must be signed and dated by the taxpayer
or the taxpayer’s authorized representative. A stamped signature
or a faxed signature is not permitted.

The taxpayer should follow these same procedures to propose
deletions from any additional information submitted after the initial
request for a TAM. An additional deletions statement, however, is
not required with each submission of additional information if the
taxpayer’s initial deletions statement requests that only names,
addresses, and identifying numbers are to be deleted and the taxpayer
wants the same information deleted from the additional information.

Transmittal Form 5565, Request
for Technical Advice — EP/EO

.05

The EP or EO Examinations or the EP or EO Determinations or
the appeals office (including another Operating Division of the Service
involved in an examination where EP Technical does not have audit
jurisdiction but has interpretive jurisdiction as enumerated in section
6.02 of Rev. Proc. 2009-4) should use Form 5565, Request
for Technical Advice — EP/EO, for transmitting a
request for technical advice to EP or EO Technical.

The appropriate office of the Service must submit electronically,
the Form 5565 for a TAM request to Donzel.H.Littlejohn@irs.gov for EP matters and Theodore.R.Lieber@irs.gov for EO matters. To the extent feasible, the accompanying documents
should be submitted to the same e-mail address (followed by a hard
copy if requested by the assigned group). See section 9.07 for additional information.

The applicable office should submit additional documents that
are not available in electronic form by fax to 202-283-9654 for EP
matters and 202-283-8858 for EO matters or by express mail or private
delivery service to the address below.

Whenever possible, all documents should contain the case number
and name of the tax law specialist or actuary assigned to the pre-submission
conference for the TAM request. Documents that are being sent in
hardcopy should be sent on the business day before the day that the
request for a TAM is submitted via e-mail, so as not to delay the
process. It is anticipated that most, if not all, such documents
will be identified during the pre-submission conference.

The field and the taxpayer are encouraged to provide electronic
versions of a proposed TAM containing the taxpayer’s deletions
and legends for EP Technical’s or EO Technical’s use.

Address to send requests from EP or EO
Examinations or EP or EO Determinations offices or another Operating
Division

If a request is from an Appeals office and is within EP/EO’s
jurisdiction, the field office must send the request for a TAM to
one of the above offices with a copy of the request to the Appeals
Director, Technical Services at the address below.

Power of attorney

.06

Any authorized representative, as described in section 9.02
of Rev. Proc. 2009-4, whether or not enrolled to practice, must comply
with Treasury Department Circular No. 230, as revised, and with the
conference and practice requirements of the Statement of Procedural
Rules (26 CFR part 601). A Form 2848, Power of Attorney
and Declaration of Representative, must be used with regard
to requests for a TAM under this revenue procedure. An original,
a copy or a fax transmission of the power of attorney is acceptable
so long as its authenticity is not reasonably disputed.

SECTION 11. HOW ARE REQUESTS HANDLED?

Taxpayer notified

.01

Regardless of whether the taxpayer or the Service initiates
the request for a TAM, the EP or EO Examinations or the EP or EO Determinations
or the appeals office: (1) will notify the taxpayer that the TAM is
being requested; and (2) at or before the time the request is submitted
to EP or EO Technical, will give to the taxpayer a copy of the arguments
that are being provided to EP or EO Technical in support of its position.

If the EP or EO specialist or appeals office initiates the request
for a TAM, he or she will give to the taxpayer a copy of the statement
of the pertinent facts and the issues proposed for submission to EP
or EO Technical.

This section 11.01 does not apply to a TAM described in section
11.07 of this revenue procedure.

Consider whether published guidance is
appropriate

.02

Whenever the assigned reviewer suspects that general guidance
should be published regarding the issue presented, the reviewer will
notify the Manager, Technical who in turn will notify the Manager,
Technical Guidance and Quality Assurance. The Manager, Technical
Guidance and Quality Assurance will then determine if the issue meets
publication standards. In general, except where policy issues and
concerns regarding proper administration of the tax laws require otherwise,
the TAM will be issued in advance of published guidance.

Conference offered

.03

When notifying the taxpayer that technical advice is being requested,
the EP or EO specialist or appeals office will also tell the taxpayer
about the right to a conference in EP or EO Technical if an adverse
decision is indicated and will ask the taxpayer whether such a conference
is desired.

If the taxpayer disagrees with the Service’s
statement of facts

.04

If the EP or EO specialist or appeals office initiates the request
for a TAM, the taxpayer has 10 calendar days after receiving the statement
of facts and specific issues to submit to that specialist or office
a written statement specifying any disagreement on the facts and issues.
A taxpayer who needs more than 10 calendar days must justify, in
writing, the request for an extension of time. The extension is subject
to the approval of the EP or EO Examinations Area manager or the EP
or EO Determinations manager or the Appeals Area Director.

After receiving the taxpayer’s statement of the areas
of disagreement, every effort should be made to reach agreement on
the facts and the specific points at issue before the matter is referred
to EP or EO Technical. If an agreement cannot be reached, the EP
or EO Examinations or the EP or EO Determinations or the appeals office
will notify the taxpayer in writing. Within 10 calendar days after
receiving the written notice, the taxpayer may submit a statement
of the taxpayer’s understanding of the facts and the specific
points at issue. A taxpayer who needs more than 10 calendar days
to prepare the statement of understanding must justify, in writing,
the request for an extension of time. The extension is subject to
the approval of the EP or EO Examinations Area manager or the EP or
EO Determinations manager or the Appeals Area Director. Both the
statements of the taxpayer and the EP or EO Examinations or EP or
EO Determinations or appeals office will be forwarded to EP or EO
Technical with the request for a TAM.

When EP or EO Examinations or EP or EO Determinations or the
Appeals Area Director and the taxpayer cannot agree on the material
facts and the request for a TAM does not involve the issue of whether
a letter ruling or determination letter should be modified or revoked,
EP or EO Technical, at its discretion, may refuse to provide technical
advice. If EP or EO Technical chooses to issue the TAM, it will base
its advice on the facts provided by the EP or EO Examinations or EP
or EO Determinations or appeals office.

If a request for a TAM involves the issue of whether a letter
ruling or determination letter should be modified or revoked, EP or
EO Technical will issue the TAM.

If the Service disagrees with the taxpayer’s
statement of facts

.05

If the taxpayer initiates the action to request a TAM, and the
taxpayer’s statement of the facts and issues is not wholly acceptable
to the EP or EO Examinations or the EP or EO Determinations or the
appeals office, the Service will notify the taxpayer in writing of
the areas of disagreement. The taxpayer has 10 calendar days after
receiving the written notice to reply to it. A taxpayer who needs
more than 10 calendar days must justify in writing the request for
an extension of time. The extension is subject to the approval of
the EP or EO Examinations Area manager, or the EP or EO Determinations
manager or the Appeals Area Director.

If an agreement cannot be reached, both the statements of the
taxpayer and the EP or EO Examinations office or the EP or EO Determinations
office or appeals office will be forwarded to EP or EO Technical with
the request for a TAM. When the disagreement involves material facts
essential to the preliminary assessment of the case, the EP or EO
Examinations Area manager, the EP or EO Determinations manager or
the Appeals Area Director may refuse to refer a taxpayer initiated
request for the TAM to EP or EO Technical.

If EP or EO Examinations or EP or EO Determinations or an Appeals
Area Director submits a case involving a disagreement of material
facts, EP or EO Technical, at its discretion, may refuse to provide
the TAM. If EP or EO Technical chooses to issue the TAM, it will
base its advice on the facts provided by the EP or EO Examinations
or the EP or EO Determinations or the appeals office.

If the taxpayer has not submitted the
required deletions statement

.06

When the EP or EO Examinations or the EP or EO Determinations
or the appeals office initiates the request for a TAM, the taxpayer
has 10 calendar days after receiving the statement of facts and issues
to be submitted to EP or EO Technical to provide the deletions statement
required under § 6110 if public inspection is permitted
pursuant to § 6110 (see section 10.05
of this revenue procedure). In such a case, if the taxpayer does
not submit the deletions statement, the EP or EO Examinations or the
EP or EO Determinations or the appeals office, will tell the taxpayer
that the statement is required.

When the taxpayer initiates the request for a TAM and does not
submit with the request a deletions statement as required by § 6110,
EP or EO Examinations or EP or EO Determinations or the Appeals Area
Director will ask the taxpayer to submit the statement. If EP or
EO Examinations or EP or EO Determinations or the Appeals Area Director
does not receive the deletions statement within 10 calendar days after
asking the taxpayer for it, EP or EO Examinations or EP or EO Determinations
or the Appeals Area Director may decline to submit the request for
the TAM.

However, if the EP or EO Examinations office or the EP or EO
Determinations office or the Appeals Area Director decides to request
a TAM, whether initiated by the EP or EO Examinations office or the
EP or EO Determinations office or the appeals office or by the taxpayer,
in a case in which the taxpayer has not submitted the deletions statement,
EP or EO Technical will make those deletions that the Commissioner
of Internal Revenue determines are required by § 6110(c).

Criminal or civil fraud cases

.07

The provisions of this section (about referring issues upon
the taxpayer’s request, obtaining the taxpayer’s statement
of the areas of disagreement, telling the taxpayer about the referral
of issues, giving the taxpayer a copy of the arguments submitted,
submitting proposed deletions, and granting conferences in EP or EO
Technical) do not apply to a TAM described in § 6110(g)(5)(A)
that involves a matter that is the subject of or is otherwise closely
related to a criminal or civil fraud investigation, or a jeopardy
or termination assessment.

In these cases, a copy of the TAM is given to the taxpayer after
all proceedings in the investigations or assessments are complete,
but before the Service mails the notice of intention to disclose the
TAM under § 6110(f)(1). The taxpayer may then provide the
statement of proposed deletions to EP or EO Technical.

SECTION 12. HOW DOES A TAXPAYER APPEAL
AN EP OR EO MANAGER’S OR AN APPEALS AREA DIRECTOR’S DECISION
NOT TO SEEK TECHNICAL ADVICE?

Taxpayer notified of decision not to
seek a TAM

.01

If the EP or EO specialist’s or the appeal’s referral
of an issue to EP or EO Technical for a TAM is not warranted, the
EP or EO specialist or the appeals office will tell the taxpayer.
A taxpayer’s request for such a referral will not be denied
merely because EP or EO Technical provided legal advice, other than
advice furnished pursuant to this revenue procedure, to the EP or
EO Examinations or the EP or EO Determinations or appeals office on
the matter.

Taxpayer may request review of decision
not to seek a TAM

.02

The taxpayer may request review of the decision of the EP or
EO specialist or the appeals office not to request a TAM in all instances.
To do so, the taxpayer must submit to that specialist or office,
within 10 calendar days after being told of the decision, a written
statement of the facts, law, and arguments on the issue and the reasons
why the taxpayer believes the matter should be referred to EP or EO
Technical for a TAM. A taxpayer who needs more than 10 calendar days
must justify in writing the request for an extension of time. The
extension is subject to the approval of the EP or EO Examinations
Area manager or the EP or EO Determinations manager or the appropriate
appeals office.

EP or EO Examinations Area manager or
EP or EO Determinations manager or Appeals Area Director determines
whether technical advice will be sought

.03

The EP or EO specialist or the appeals office submits the taxpayer’s
statement through proper channels to the EP or EO Examinations Area
manager or the EP or EO Determinations manager or the Appeals Area
Director along with the EP or EO specialist’s or the appeals
office’s statement of why the issue should not be referred to
EP or EO Technical. The manager or chief determines, on the basis
of the statements, whether a TAM will be requested.

If the manager or chief determines that a TAM is not warranted
and proposes to deny the request, the taxpayer is told in writing
about the determination. In the letter to the taxpayer, the manager
or chief states the reasons for the proposed denial (except in unusual
situations when doing so would be prejudicial to the best interests
of the Government). The taxpayer has 10 calendar days after receiving
the letter to notify the manager or chief of agreement or disagreement
with the proposed denial.

Manager or area director’s decision
may be reviewed but not appealed

.04

The taxpayer may not appeal the decision of the EP or EO Examinations
Area manager or the EP or EO Determinations manager or the Appeals
Area Director not to request a TAM from EP or EO Technical. However,
if the taxpayer does not agree with the proposed denial, all data
on the issue for which the TAM has been sought, including the taxpayer’s
written request and statements, will be submitted to the Commissioner,
Tax Exempt and Government Entities Division or the Director, Appeals,
Technical Services as appropriate.

The Commissioner, Tax Exempt and Government Entities Division
through the Director, Employee Plans, or the Director, Exempt Organizations
or, if appropriate, the Chief, Appeals will review the proposed denial
solely on the basis of the written record, and no conference will
be held with the taxpayer or the taxpayer’s representative.
The appropriate Director or Chief or his or her representative may
consult with EP or EO Technical and the Office of Chief Counsel, if
necessary, and will notify the EP or EO Examinations or the EP or
EO Determinations or the appeals office within 45 calendar days of
receiving all the data regarding the request for a TAM whether the
proposed denial is approved or disapproved. The EP or EO Examinations
or the EP or EO Determinations or appeals office will then notify
the taxpayer.

While the matter is being reviewed, the EP or EO Examinations
office or the EP or EO Determinations office or the appeals office
suspends action on the issue (except when the delay would prejudice
the Government’s interest).

The provisions of this revenue procedure regarding review of
the proposed denial of a request for a TAM continue to be applicable
in those situations in which the authority normally exercised by the
EP or EO Examinations Area manager, the EP or EO Determinations manager,
or the Appeals Area Director has been delegated to another official.

SECTION 13. HOW ARE REQUESTS FOR TAMS
WITHDRAWN?

Taxpayer notified

.01

Once a request for a TAM has been sent to EP or EO Technical,
only an EP or EO Examinations Area manager, an EP or EO Determinations
manager or the Appeals Area Director may withdraw that request for
the TAM. He or she may ask to withdraw a request at any time before
the responding transmittal memorandum transmitting the TAM is signed.

The EP or EO Examinations Area manager, the EP or EO Determinations
manager or the Appeals Area Director as appropriate, must notify the
taxpayer in writing of an intent to withdraw the request for the TAM
except—

(1) when the period of limitations on assessment is about to
expire and the taxpayer has declined to sign a consent to extend the
period, or

(2) when such notification would be prejudicial to the best
interests of the Government.

If the taxpayer does not agree that the request for a TAM should
be withdrawn, the procedures in section 12 of this revenue procedure
must be followed.

EP or EO Technical may provide views

.02

When a request for a TAM is withdrawn, EP or EO Technical may
send its views to the EP or EO Examinations office or the EP or EO
Determinations office or the Appeals Area Director when acknowledging
the withdrawal request. In an appeals case, acknowledgment of the
withdrawal request should be sent to the appropriate appeals office,
through the Director, Technical Services, C:AP. In appropriate cases,
the subject matter may be published as a revenue ruling or as a revenue
procedure.

SECTION 14. HOW ARE CONFERENCES SCHEDULED?

If requested, offered to the taxpayer
when adverse TAM proposed

.01

If, after the TAM is analyzed, it appears that a TAM adverse
to the taxpayer will be given, and if a conference has been requested,
the taxpayer will be informed, by telephone if possible, of the time
and place of the conference.

Timeline

.02

The conference for a TAM must be held within 21 calendar days
after the taxpayer is contacted.

If conferences are being arranged for more than one request
for a TAM for the same taxpayer, they will be scheduled to cause the
least inconvenience to the taxpayer. If considered appropriate, EP
or EO Technical will notify the EP or EO specialist or the appeals
office of the scheduled conference and will offer the EP or EO specialist
or the appeals officer the opportunity to attend the conference.
The Commissioner, Tax Exempt and Government Entities Division, the
Chief, Appeals, the EP or EO Examinations Area manager, the EP or
EO Determinations manager, or the Appeals Area Director may designate
other Service representatives to participate in the conference in
lieu of, or in addition to, the EP or EO specialist or the appeals
officer.

21-day period may be extended if justified
and approved

.03

An extension of the 21-day period will be granted only if the
taxpayer justifies it in writing, and the group manager (or his or
her delegate) of the office to which the case is assigned approves
it. No extension will be granted without the approval of the group
manager (or his or her delegate). The taxpayer (or an authorized
representative) must notify the EP Specialist or the EO Specialist
or the appeals office of the request for an extension. Except in
rare and unusual circumstances, EP or EO Technical will not agree
to an extension of more than 10 working days beyond the end of the
21-day period.

The taxpayer’s request for an extension must be submitted
before the end of the 21-day period, and should be submitted sufficiently
before the end of this period to allow EP or EO Technical to consider,
and either approve or deny, the request before the end of the 21-day
period. If unusual circumstances near the end of the period make
a timely written request impractical, the taxpayer (or an authorized
representative) should orally inform the assigned tax law specialist
or actuary before the end of the period about the problem and about
the forthcoming written request for an extension. The written request
for an extension must be submitted to EP or EO Technical promptly
after the oral request. The taxpayer will be told promptly (and later
in writing) of the approval or denial of the requested extension.

Denial of extension cannot be appealed

.04

There is no right to appeal the denial of a request for an extension
of a TAM. If EP or EO Technical is not advised of problems with meeting
the 21-day period, or if the written request is not sent promptly
after EP or EO Technical is notified of problems with meeting the
21-day period, the TAM will be processed on the basis of the existing
record.

Entitled to one conference of right

.05

A taxpayer is entitled by right to only one conference in EP
or EO Technical except as provided in section 14.09 of this revenue
procedure. This conference is normally held at the group level in
EP Technical or EO Technical, whichever is appropriate. It is attended
by a person who has authority to sign the transmittal memorandum discussed
in section 16.13 on behalf of the group manager.

When more than one group has taken an adverse position on an
issue in the request, or when the position ultimately adopted by one
group will affect another group’s determination, a representative
from each group with authority to sign for the group manager will
attend the conference. If more than one subject is discussed at the
conference, the discussion constitutes the conference of right for
each subject discussed.

To have a thorough and informed discussion of the issues, the
conference usually is held after the group has had an opportunity
to study the case. However, the taxpayer may request that the conference
of right be held earlier in the consideration of the case than the
Service would ordinarily designate.

The taxpayer has no right to appeal the action of a group to
any other Service official. But see section 14.09 for situations
in which the Service may offer additional conferences.

Conference may not be taped

.06

Because conference procedures are informal, no tape, stenographic,
or other verbatim recording of a conference may be made by any party.

Conference may be delayed to address
a request for relief under § 7805(b)

.07

In the event of a tentative adverse determination, the taxpayer
may request in writing a delay of the conference so that the taxpayer
can prepare and submit a brief requesting relief under § 7805(b)
(discussed in section 19 of this revenue procedure). The group manager
(or his or her delegate) of the office to which the case is assigned
will determine whether to grant or deny the request for delaying the
conference. If such request is granted, the Service will schedule
a conference on the tentatively adverse position and the § 7805(b)
relief request within 10 days of receiving the taxpayer’s § 7805(b)
request. See, section 19.06 of this revenue
procedure for the conference procedures if the § 7805(b)
request is made after the conference on the substantive issues has
been held.

Service makes tentative recommendations

.08

The senior Service representative at the conference ensures
that the taxpayer has full opportunity to present views on all the
issues in question. The Service representatives explain the tentative
decision on the substantive issues.

If the taxpayer requests relief under § 7805(b) (regarding
limitation of retroactive effect), the Service representatives will
discuss the tentative recommendation concerning the request for relief
and the reason(s) for the tentative recommendation.

No commitment will be made as to the conclusion that the Service
will finally adopt regarding any issue, including the outcome of the
§ 7805(b) request for relief.

Additional conferences may be offered

.09

The Service will offer the taxpayer an additional conference
if, after the conference of right, an adverse holding is proposed
on a new issue or on the same issue but on grounds different from
those discussed at the first conference.

When a proposed holding is reversed at a higher level with a
result less favorable to the taxpayer, the taxpayer has no right to
another conference if the grounds or arguments on which the reversal
is based were discussed at the conference of right.

The limitation on the number of conferences to which a taxpayer
is entitled does not prevent EP or EO Technical from inviting a taxpayer
to attend additional conferences, including conferences with an official
higher than the group level, if EP or EO Technical personnel think
they are necessary. Such conferences are not offered as a matter
of course simply because the group has reached an adverse decision.
In general, conferences with higher level officials are offered only
if the Service determines that the case presents significant issues
of tax policy or tax administration and that the consideration of
these issues would be enhanced by additional conferences with the
taxpayer.

In accordance with section 14.02 of this revenue procedure,
the EP or EO specialist or the appeals office may be offered the opportunity
to participate in any additional taxpayer’s conference, including
a conference with an official higher than the group level. Section
14.02 of this revenue procedure also provides that other Service representatives
are allowed to participate in the conference.

Additional information submitted after
the conference

.10

After the conference, the taxpayer must furnish to EP or EO
Technical, whichever is applicable, any additional data, lines of
reasoning, precedents, etc., that the taxpayer proposed and discussed
at the conference but did not previously or adequately present in
writing. This additional information must be submitted by letter
with a penalties of perjury statement in the form described in section
16.10 of this revenue procedure.

For TAMs the taxpayer must also send a copy of the additional
information to the EP or EO Examinations office or the EP or EO Determinations
office or the Appeals Area Director for comment. Any comments on
additional information by Service personnel must be furnished promptly
to the appropriate group in EP or EO Technical. If the EP or EO Examinations
office or the EP or EO Determinations office or the Appeals Area Director
does not have any comments, he or she must notify the group representative
promptly.

If the additional information has a significant impact on the
facts in the request for a TAM, EP or EO Technical will ask EP or
EO Examinations or EP or EO Determinations or the Appeals Area Director
for comments on the facts contained in the additional information
submitted. The EP or EO Examinations office or the EP or EO Determinations
office or the Appeals Area Director will give the additional information
prompt attention.

If the additional information is not received from the taxpayer
within 21 calendar days, the TAM will be issued on the basis of the
existing record.

An extension of the 21-day period for TAMs may be granted only
if the taxpayer justifies it in writing, and the group manager (or
his or her delegate) of the office to which the case is assigned approves
the extension. Such extension will not be routinely granted. The
procedures for requesting an extension of the 21-day period and notifying
the taxpayer of the Service’s decision are the same as those
in sections 14.03 and 14.04 of this revenue procedure.

Normally held by telephone

.11

The conference will be conducted by telephone, unless the taxpayer
or the field requests that the conference be held in person. The
taxpayer will be advised when to call the Service representatives
(not a toll-free call). In no event will the conference be delayed
to provide an in-person conference rather than a telephone conference.

In accordance with section 14.02 of this revenue procedure,
the EP or EO specialist or appeals office will be offered the opportunity
to participate in the telephone conference. Section 14.02 of this
revenue procedure also provides that other Service representatives
are allowed to participate in the conference.

SECTION 15. HOW IS STATUS OF REQUEST
OBTAINED?

Taxpayer or taxpayer’s representative
may request status from EP or EO Examinations or EP or EO Determinations
or appeals office

.01

The taxpayer or the taxpayer’s representative may obtain
information on the status of the request for a TAM by contacting the
EP or EO Examinations office or the EP or EO Determinations office
or the appeals office that requested the TAM. See section 16.08 of this revenue procedure concerning the time for
discussing the tentative conclusion with the taxpayer’s representative.
See section 17.03 of this revenue procedure
regarding discussions of the contents of the TAM with the taxpayer
or the taxpayer’s representative.

EP or EO Technical will give status updates
to the EP or EO Examinations or EP or EO Determinations or Appeals
Area Director

.02

The group representative or manager to whom the TAM request
is assigned will give status updates on the request once a month to
the EP or EO Examination Area manager or the EP or EO Determinations
manager or the Appeals Area Director. In addition, an EP or EO Examinations
Area manager or an EP or EO Determinations manager or an Appeals Area
Director may get current information on the status of the request
for a TAM by calling the person whose name and telephone number are
shown on acknowledgment of receipt of the request for the TAM.

See section 16.09 of this revenue procedure
about discussing the final conclusions with the EP or EO Examinations
office or the EP or EO Determinations office or the appeals office.
Further, the EP or EO Examinations office or the EP or EO Determinations
office or the Appeals Area Director will be notified at the time the
TAM is mailed.

SECTION 16. HOW DOES EP OR EO TECHNICAL
PREPARE THE TAM?

Delegates authority to group managers

.01

The authority to issue a TAM on issues under the jurisdiction
of the Commissioner, Tax Exempt and Government Entities Division has
largely been delegated to the managers of the Employee Plans Rulings
& Agreements Technical and Actuarial groups, and the Technical
Guidance and Quality Assurance group (collectively referred to as
“EP Technical”); and of the Exempt Organizations Rulings
& Agreements Technical groups and the Technical Guidance and Quality
Assurance group (collectively referred to as “EO Technical”)

Determines whether request has been properly
made

.02

A request for a TAM generally is given priority and processed
expeditiously. As soon as the request for a TAM is assigned, the
technical employee analyzes the file to see whether it meets all of
the requirements of sections 7, 8, and 10 of this revenue procedure.

However, if the request does not comply with the requirements
of section 10.04 of this revenue procedure relating to the deletions
statement, the Service will follow the procedure in section 11.06
of this revenue procedure.

Contacts the EP or EO Examinations or
EP or EO Determinations or appeals office to discuss issues

.03

Upon receipt of a request for a TAM, a representative of the
group assigned the TAM will telephone the EP or EO Examinations office
or the EP or EO Determinations office or the appeals office to acknowledge
receipt of the TAM and to establish a point of contact. Within 21
calendar days from the receipt of a TAM, the tax law specialist or
actuary should contact the EP or EO specialist or appeals office to
discuss the procedural and substantive issues in the request that
come within the group’s jurisdiction.

Informs the EP or EO Examinations or
EP or EO Determinations or appeals office if any matters in the request
have been referred to another group or office

.04

If the technical advice request concerns matters within the
jurisdiction of more than one group or office, a representative of
the group that received the original technical advice request generally
informs the EP or EO Examinations office or the EP or EO Determinations
office or the appeals office within 21 calendar days of receiving
the request that—

(1) the matters within the jurisdiction of another group or
office have been referred to the other group or office for consideration,
and

(2) a representative of the other group or office will contact
the EP or EO Examinations office or the EP or EO Determinations office
or the appeals office about the referral of the technical advice request
within 21 calendar days after receiving it in accordance with section
16.03 above.

Informs the EP or EO Examinations or
EP or EO Determinations or appeals office if additional information
is needed

.05

The group representative will inform the EP or EO Examinations
office or the EP or EO Determinations office or the appeals office
that the case is being returned if substantial additional information
is required to resolve an issue. Cases also should be returned for
additional information when significant unresolved factual variances
exist between the statement of facts submitted by the EP or EO Examinations
office or the EP or EO Determinations office or the appeals office
and the taxpayer. They should also be returned if major procedural
problems cannot be resolved by telephone. The EP or EO Examinations
office or the EP or EO Determinations office or the appeals office
should promptly notify the taxpayer of the decision to return the
case for further factual development or other reasons.

If only minor procedural deficiencies exist, the group will
request the additional information in the most expeditious manner
without returning the case.

Informs the EP or EO Examinations or
EP or EO Determinations or appeals office of the tentative conclusion

.06

If all necessary information has been provided, the group representative
informs the EP or EO Examinations office or the EP or EO Determinations
office or the appeals office within 21-calendar days after receiving
the information for a TAM of his or her tentative conclusion.

If a tentative conclusion has not been
reached, gives date estimated for tentative conclusion

.07

If a tentative conclusion has not been reached because of the
complexity of the issue, the group representative informs the EP or
EO Examinations office or the EP or EO Determinations office or the
appeals office of the estimated date the tentative conclusion will
be made.

Advises the EP or EO Examinations or
EP or EO Determinations or appeals office that preliminary conclusion
not final

.08

Because the group representative’s tentative conclusion
may change during the preparation and review of the TAM, the tentative
conclusion should not be considered final. Therefore, neither the
group representative nor the EP or EO Examinations office or the EP
or EO Determinations or the appeals office should advise the taxpayer
or the taxpayer’s representative of the tentative conclusion
before the scheduling of the adverse conference or between the scheduling
and the commencement of the adverse conference.

Advises the EP or EO Examinations or
EP or EO Determinations or appeals office of final conclusions

.09

In all cases, the group representative should inform the EP
or EO specialist or appeals office of EP or EO Technical’s final
conclusions. The EP or EO specialist or the appeals office should
be offered the opportunity to discuss the issues and EP or EO Technical’s
final conclusions before the TAM is issued.

If needed, requests additional information

.10

If, following the initial contact referenced in section 16.03
of this revenue procedure, it is determined, after discussion with
the appropriate group manager or reviewer, that additional information
is needed, a group representative will obtain the additional information
from the taxpayer, the EP or EO Examinations office or the EP or EO
Determinations office or the Appeals Area Director in the most expeditious
manner possible. Any additional information requested from the taxpayer
by EP or EO Technical must be submitted by letter, accompanied by
a penalties of perjury statement, within 21 calendar days after the
request for information is made.

Request for additional information by
fax

(1) To facilitate prompt action on TAM requests, the Service
may request any additional information from the taxpayer by fax.

A request to fax a copy of additional information to the taxpayer
or the taxpayer’s authorized representative must be made in
writing, either as part of the original TAM request or prior to the
mailing of the request for additional information. The request to
fax additional information must contain the fax number of the taxpayer
or the taxpayer’s authorized representative to and from whom
the document is to be faxed.

Because of the unsecured nature of a fax transmission, the Service
will take certain precautions to protect confidential information.
For example, the Service will use a cover sheet that identifies the
intended recipient of the fax and the number of pages transmitted,
that does not identify the taxpayer by name or tax identifying number
and that contains a statement prohibiting unauthorized disclosure
of the document if a recipient of the faxed document is not the intended
recipient of the fax. Also, for example, the cover sheet should be
faxed in an order in which it will become the first page covering
the faxed document.

Penalties of perjury statement

(2) Additional information submitted to EP or EO Technical must
be accompanied by the following declaration: “Under penalties of perjury, I declare that I have examined
this information, including accompanying documents, and, to the best
of my knowledge and belief, the information contains all the relevant
facts relating to the request for the information and such facts are
true, correct, and complete.” This declaration must
be signed and dated by the taxpayer, not the taxpayer’s representative.
A stamped signature or a faxed signature is not permitted.

(3) A written request for an extension of time to submit additional
information must be received by EP or EO Technical within the 21-day
period, giving compelling facts and circumstances to justify the proposed
extension. The group manager (or his or her delegate) of the office
to which the case is assigned will determine whether to grant or deny
the request for an extension. Except in rare and unusual circumstances,
EP or EO Technical will not agree to an extension of more than 10
working days beyond the end of the 21-day period. There is no right
to appeal the denial of a request for an extension.

(4) If EP or EO Technical does not receive the additional information
within 21 calendar days, plus any extensions granted by the appropriate
group manager (or his or her delegate), EP or EO Technical will process
the TAM based on the existing record.

Requests taxpayer to send additional
information to the EP or EO Technical and a copy to the EP or EO Examinations
or EP or EO Determinations or Appeals Area Director

.11

Whether or not requested by the Service, any additional information
submitted by the taxpayer should be sent to the headquarters office.
Generally, the taxpayer needs only to submit the original of the
additional information to EP or EO Technical. However, in appropriate
cases, EP or EO Technical may request additional copies of the information.

Also, the taxpayer must send a copy to either the EP or EO Examinations
office or the EP or EO Determinations office or the Appeals Area Director
for comment. Any comments must be furnished promptly to the appropriate
group in EP or EO Technical. If the EP or EO Examinations office
or the EP or EO Determinations office or the Appeals Area Director
does not have any comments, he or she must notify the group representative
promptly.

Informs the taxpayer when requested deletions
will not be made

.12

Generally, before replying to the request for a TAM, EP or EO
Technical informs the taxpayer orally or in writing of the material
likely to appear in the TAM that the taxpayer proposed be deleted
but that the Service has determined should not be deleted.

If so informed, the taxpayer may submit within 10 calendar days
any further information or other arguments supporting the taxpayer’s
proposed deletions.

The Service will attempt to resolve all disagreements about
proposed deletions before EP or EO Technical replies to the request
for a TAM. However, the taxpayer does not have the right to a conference
to resolve any disagreements about material to be deleted from the
text of the TAM. These matters, however, may be considered at any
conference otherwise scheduled for the request.

Prepares reply in two parts

.13

EP or EO Technical’s reply to a TAM request is in two
parts. Each part identifies the taxpayer by name, address, identification
number, and year or years involved.

The first part of the reply is a transmittal memorandum. In
unusual cases, it is a way of giving the EP or EO Examinations office
or the EP or EO Determinations office or the appeals office administrative
or other information that under the nondisclosure statutes or for
other reasons may not be discussed with the taxpayer.

The second part is the TAM, which contains—

(1) a statement of the issues;

(2) a statement of the facts pertinent to the issues;

(3) a statement of the pertinent law, tax treaties, regulations,
revenue rulings, and other precedents published in the Internal Revenue
Bulletin, and court decisions;

(4) a discussion of the rationale underlying the conclusions
reached by EP or EO Technical; and

(5) the conclusions of EP or EO Technical.

The conclusions give direct answers, whenever possible, to the
specific issues raised by the EP or EO Examinations office or the
EP or EO Determinations office or the appeals office. However, EP
or EO Technical is not bound by the precise statement of the issues
as submitted by the taxpayer or by the EP or EO Examinations office
or the EP or EO Determinations office or the appeals office and may
reframe the issues to be answered in the TAM. The discussion in the
TAM of the issues will be in sufficient detail so that the EP or EO
Examinations or EP or EO Determinations or appeals officials will
understand the reasoning underlying the conclusion.

Accompanying a TAM subject to § 6110, is a notice
under § 6110(f)(1) of intention to disclose the TAM (including
a copy of the version proposed to be open to public inspection and
notations of third party communications under § 6110(d)).

Routes replies to appropriate office

.14

Replies to requests for TAMs from EO Examinations Area managers
and EO Determinations managers are addressed to:

The EO Mandatory Review Staff will ensure that copies are forwarded
to the EO Examinations Area manager or the EO Determinations manager.

Replies to requests for TAMs from EP Examinations Area managers
as well as replies to all requests for TAMs from other Operating Divisions
of the Service involved in an examination where EP Technical does
not have audit jurisdiction but has interpretive jurisdiction as enumerated
in section 6.02 of Rev. Proc. 2009-4, are addressed to:

Replies to requests for TAMs from the Appeals Area Director
are routed to the appropriate appeals office through Technical Services,
C:AP.

SECTION 17. HOW DOES AN EP OR EO EXAMINATIONS
OR EP OR EO DETERMINATIONS OR AN APPEALS OFFICE USE THE TAMs?

Generally applies advice in processing
the taxpayer’s case

.01

The EP or EO Examinations Area manager or the EP or EO Determinations
manager or the Appeals Area Director must process the taxpayer’s
case on the basis of the conclusions in the TAM unless—

(1) the EP or EO Examinations Area manager or the EP or EO Determinations
manager or the Appeals Area Director decides that the conclusions
reached by EP or EO Technical in a TAM should be reconsidered (the
reconsideration process may include a conference held with the EP
or EO specialist or appeals office that requested the TAM and the
tax law specialist or actuary who drafted the TAM), or

(2) the Appeals Area Director in the case of a TAM unfavorable
to the taxpayer, decides to settle the issue in the usual manner under
existing authority.

Subject to a request for reconsideration of the conclusions
in a TAM, EP or EO Examinations or EP or EO Determinations must follow
the conclusions in a TAM as to all issues and the Appeals Area Director
must follow the conclusions in a TAM on issues of an organization’s/plan’s
status or qualification. Thus, if the TAM received by EP or EO Examinations
or EP or EO Determinations concerns an organization’s/plan’s
status or qualification, the organization/plan has no appeal to the
appeals office on those specific issues.

Reconsideration

.02

The EP or EO Area Examinations office or the EP or EO Determinations
office or the Appeals Area Director has 30 calendar days after receipt
of a TAM to either formally request reconsideration or give the adopted
TAM to the taxpayer. Requests for TAM reconsideration must describe
with specificity the errors in the TAM analysis and conclusions.
Requests for reconsideration should not reargue points raised in the
initial request, but should instead focus on points that the TAM overlooked
or misconstrued in the arguments by the EP or EO Area Examinations
office or the EP or EO Determinations office or the Appeals Area Director
in support of their request. The Headquarters office may request further
submissions from the field or the taxpayer, but the parties should
make no additional submissions in the absence of such a request.

If the field does not request reconsideration of a TAM, the
TAM will take effect when the field provides a copy of the adopted
TAM to the taxpayer, or at the end of the 30-day period following
the issuance of the TAM to the field.

Discussion with the taxpayer

.03

EP or EO Technical will not discuss the contents of the TAM
with the taxpayer or the taxpayer’s representative until the
taxpayer has been given a copy by the EP or EO Examinations office
or the EP or EO Determinations office or the appeals office

Gives copy to the taxpayer

.04

The EP or EO Examinations office or the EP or EO Determinations
office or the Appeals Area Director only after adopting the TAM, gives
the taxpayer (1) a copy of the TAM described in section 16.13, and
(2) the notice under § 6110(f)(1) of intention to disclose
the TAM (including a copy of the version proposed to be open to public
inspection and notations of third party communications under § 6110(d)).

This requirement does not apply to a TAM involving a criminal
or civil fraud investigation, or a jeopardy or termination assessment,
as described in section 11.07 of this revenue procedure, or documents
to which § 6104 (document open to public inspection) applies
as described in section 10.03.

Taxpayer may protest deletions not made

.05

After receiving the notice under § 6110(f)(1) of intention
to disclose the TAM, the taxpayer may protest the disclosure of certain
information in it. The taxpayer must submit a written statement within
20 calendar days identifying those deletions not made by the Service
that the taxpayer believes should have been made. The taxpayer must
also submit a copy of the version of the TAM proposed to be open to
public inspection with brackets around deletions proposed by the taxpayer
that have not been made by EP or EO Technical.

Generally, EP or EO Technical considers only the deletion of
material that the taxpayer has proposed be deleted or other deletions
as required under § 6110(c) before the EP or EO Technical
reply is sent to the EP or EO Examinations office or the EP or EO
Determinations office or the Appeals Area Director. Within 20 calendar
days after it receives the taxpayer’s response to the notice
under § 6110(f)(1), EP or EO Technical must mail the taxpayer
its final administrative conclusion about the deletions to be made.

When no copy is given to the taxpayer

.06

If EP or EO Technical tells the EP or EO Examinations office
or the EP or EO Determinations office or the Appeals Area Director
that a copy of the TAM should not be given to the taxpayer and the
taxpayer requests a copy, the EP or EO Examinations office or the
EP or EO Determinations office or the Appeals Area Director will tell
the taxpayer that no copy will be given.

SECTION 18. WHAT IS THE EFFECT OF A
TAM?

Applies only to the taxpayer for whom
TAM was requested

.01

A taxpayer may not rely on a TAM issued by the Service for another
taxpayer.

Usually applies retroactively

.02

Except when stated otherwise, a holding in a TAM is applied
retroactively, unless the Commissioner, Tax Exempt and Government
Entities Division exercises discretionary authority under § 7805(b)
to limit the retroactive effect of the holding. Section 18.06 below
lists the criteria necessary for granting § 7805(b) relief,
and section 18 of this revenue procedure describes the effect of § 7805(b)
relief.

Generally applied retroactively to modify
or revoke prior TAM

.03

A holding that modifies or revokes a holding in a prior TAM
is applied retroactively, with one exception. If the new holding
is less favorable to the taxpayer than the earlier one, it generally
is not applied to the period when the taxpayer relied on the prior
holding in situations involving continuing transactions.

Applies to continuing action or series
of actions until specifically withdrawn, modified, or revoked

.04

If a TAM relates to a continuing action or a series of actions,
ordinarily it is applied until specifically withdrawn or until the
conclusion is modified or revoked by enactment of legislation, ratification
of a tax treaty, a decision of the United States Supreme Court, or
the issuance of regulations (temporary or final), a revenue ruling,
or other statement published in the Internal Revenue Bulletin. Publication
of a notice of proposed rulemaking does not affect the application
of a TAM.

Applies to continuing action or series
of actions until material facts change

.05

A taxpayer is not protected against retroactive modification
or revocation of a TAM involving a continuing action or a series of
actions occurring after the material facts on which the TAM is based
have changed.

Does not apply retroactively under certain
conditions

.06

Generally, a TAM that modifies or revokes a letter ruling or
another TAM or a determination letter is not applied retroactively
either to the taxpayer to whom or for whom the letter ruling or TAM
or determination letter was originally issued, or to a taxpayer whose
tax liability was directly involved in such letter ruling or TAM or
determination letter if—

(1) there has been no misstatement or omission of material facts;

(2) the facts at the time of the transaction are not materially
different from the facts on which the letter ruling or TAM or determination
letter was based;

(3) there has been no change in the applicable law;

(4) in the case of a letter ruling, it was originally issued
on a prospective or proposed transaction; and

(5) the taxpayer directly involved in the letter ruling or TAM
or determination letter acted in good faith in relying on the letter
ruling or TAM or determination letter, and the retroactive modification
or revocation would be to the taxpayer’s detriment. For example,
the tax liability of each employee covered by a letter ruling or TAM
or determination letter relating to a pension plan of an employer
is directly involved in the letter ruling or TAM or determination
letter. However, the tax liability of members of an industry is not
directly involved in a letter ruling or TAM or determination letter
issued to one of the members, and the holding in a modification or
revocation of a letter ruling or TAM or determination letter to one
member of an industry may be retroactively applied to other members
of the industry. By the same reasoning, a tax practitioner may not
obtain the nonretroactive application to one client of a modification
or revocation of a letter ruling or TAM or determination letter previously
issued to another client.

When a letter ruling or determination letter to a taxpayer or
a TAM involving a taxpayer is modified or revoked with retroactive
effect, the notice to the taxpayer, except in fraud cases, sets forth
the grounds on which the modification or revocation is being made
and the reason why the modification or revocation is being applied
retroactively.

In order for a TAM that modifies or revokes a letter ruling
or another TAM or a determination letter not to be applied retroactively
either to the taxpayer to whom or for whom the letter ruling, TAM
or determination letter was originally issued, or to a taxpayer whose
tax liability was directly involved in such letter ruling, TAM or
determination letter, such taxpayer generally must request relief
under § 7805(b) in the manner described in section 19 below.

SECTION 19. HOW MAY RETROACTIVE EFFECT
BE LIMITED?

Commissioner has discretionary authority
under § 7805(b)

.01

Under § 7805(b) the Commissioner or the Commissioner’s
delegate has the discretion to prescribe the extent, if any, to which
a TAM will be applied without retroactive effect.

Taxpayer may request Commissioner to
exercise authority

.02

A taxpayer who has received a TAM or for whom a TAM request
is pending may request that the Commissioner, Tax Exempt and Government
Entities Division, the Commissioner of Internal Revenue’s delegate,
exercise the discretionary authority under § 7805(b) to
limit the retroactive effect of any holding stated in the TAM, which
may still be pending, which must have been issued,or to limit the
retroactive effect of any subsequent modification or revocation of
a TAM.

Form of request to limit retroactivity—before
an examination

.03

When a TAM that concerns a continuing transaction is modified
or revoked by, for example, a subsequent revenue ruling or final regulations,
a request to limit the retroactive effect of the modification or revocation
of the TAM must be made in the form of a request for a letter ruling
if submitted before examination of the return that contains the transaction
that is the subject of the request for the letter ruling. See, Rev. Proc. 2009-4.

Form of request to limit retroactivity—during
course of an examination

.04

When, during the course of an examination of a taxpayer’s
return by EP or EO Examinations or consideration by the Appeals Area
Director, a taxpayer is informed that EP or EO Examinations or the
Appeals Area Director recommends that a TAM be modified or revoked,
a request to limit the retroactive application of the modification
or revocation of the TAM must itself be made in the form of a request
for a TAM. See, sections 7, 8 and 10 of this
revenue procedure and sections 19.07 and 19.08 below.

The taxpayer must also submit a statement that the request is
being made pursuant to § 7805(b). This statement must also
indicate the relief requested and give the reasons and arguments in
support of the relief requested. It must also be accompanied by any
documents bearing on the request. The explanation should discuss
the five items listed in section 18.06 of this revenue procedure as
they relate to the taxpayer’s situation.

The taxpayer’s request, including the statement that the
request is being made pursuant to § 7805(b), must be forwarded
by EP or EO Examinations or the Appeals Area Director to EP or EO
Technical for consideration.

Form of request to limit retroactivity—technical
advice that does not modify or revoke prior memorandum

.05

A request to limit the retroactive effect of a holding in a
TAM that does not modify or revoke a TAM may be made as part of that
TAM request, either initially, or at any time before the TAM is issued
by EP or EO Technical. In such a case, the taxpayer must also submit
a statement in support of the application of § 7805(b),
as described in section 19.04 above.

Taxpayer’s right to a conference

.06

When a request for a TAM concerns only the application of § 7805(b),
the taxpayer has the right to a conference in EP or EO Technical in
accordance with the provisions of section 14 of this revenue procedure.

If the request for application of § 7805(b) is included
in the request for a TAM on the substantive issues or is made before
the conference of right on the substantive issues, the § 7805(b)
issues will be discussed at the taxpayer’s one conference of
right.

If the request for the application of § 7805(b) is
made as part of a pending TAM request after a conference has been
held on the substantive issues, and the Service determines that there
is justification for having delayed the request, then the taxpayer
will have the right to one conference of right concerning the application
of § 7805(b), with the conference limited to discussion
of this issue.

.07

Where the applicant has requested EP Determinations to seek
a TAM on the applicability of § 7805(b) relief to a qualification
issue under § 401(a) pursuant to a determination letter
request, the applicant’s administrative remedies will not be
considered exhausted until EP Technical has a reasonable time to act
on the request for a TAM. (See, section 20 of Rev. Proc. 2009-6.)

Exhaustion of administrative remedies
— exempt organization matters

.08

Where a TAM has been requested pursuant to an exempt organization’s
request for § 7805(b) relief from the retroactive application
of an adverse determination within the meaning of § 7428(a)(1),
the exempt organization’s administrative remedies will not be
considered exhausted, within the meaning of § 7428(b)(2),
until EO Technical has a reasonable time to act on the request for
a TAM.

SECTION 20. WHAT IS THE EFFECT OF THIS
REVENUE PROCEDURE ON OTHER DOCUMENTS?

Rev. Proc. 2008-5 is superseded.

SECTION 21. EFFECTIVE DATE

This revenue procedure is effective January 5, 2009.

SECTION 22. PAPERWORK REDUCTION ACT

The collections of information contained in this revenue procedure
have been reviewed and approved by the Office of Management and Budget
in accordance with the Paperwork Reduction Act (44 U.S.C. § 3507)
under control number 1545-1520.

An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless the collection of
information displays a valid OMB control number.

The collections of information in this revenue procedure are
in sections 6.03, 9, 10.01, 10.05, 11.04, 11.05, 11.06, 12.02, 12.03,
13.01, 14.03, 14.10, 16.10, 16.12, 17.05, 19.03, 19.04, and 19.05.
This information is required to evaluate and process the request
for a TAM. In addition, this information will be used to help the
Service delete certain information from the text of the TAM before
it is made available for public inspection, as required by § 6110.
The collections of information are required to obtain a TAM. The
likely respondents are businesses or other for-profit institutions
and not-for-profit institutions.

The estimated annual burden per respondent/recordkeeper varies
from 4 hours to 60 hours, depending on individual circumstances, with
an estimated average of 19.5 hours. The estimated number of respondents
and/or recordkeepers is 100.

The estimated annual frequency of responses is one request per
applicant.

Books or records relating to a collection of information must
be retained as long as their contents may become material in the administration
of any internal revenue law. Generally, tax returns and tax return
information are confidential, as required by § 6103.

DRAFTING INFORMATION

The principal author of this revenue procedure is Angelique
Carrington of the Employee Plans, Tax Exempt and Government Entities
Division. For further information regarding how this revenue procedure
applies to employee plans matters, please contact the Employee Plans
Customer Assistance Service at 877-829-5500 (a toll-free number) between
the hours of 8:30 am and 4:30 pm Eastern time, Monday through Friday.
In the alternative, please email Ms. Carrington at RetirementPlanQuestions@irs.gov. For exempt organizations matters, please email Mr. Ted Lieber
at tege.eo.ra@irs.gov. Please put “Question
about Rev. Proc. 2009-5” in the subject line.

INDEX

References are to sections
in Rev. Proc. 2009-5

Additional Information

procedure for submission

sections 16.02, 16.05, 16.10

after conference

section 14.10

proposed deletions
under § 6110

section 10.04

Chief Counsel

jurisdiction

section 5.01

Conferences

offered

sections 11.03, 14.01, 14.09

exceptions

sections 11.05, 12.04, 16.12

pre-submission

section 9

scheduling

section 14

request to limit retroactivity

sections 14.07, 14.08, 19.06

telephone conferences

section 14.11

Definitions

technical advice memorandum

section 3

Extension of Time

to appeal decision
not to request

section 12.02

to disagree with statement
of facts

sections 11.04, 11.05

to schedule conference

sections 14.03, 14.05

to submit additional
information

sections 14.10, 16.10

Farmers’ Cooperatives

sections 4.02, 5.01

Letter Ruling

section 18.06

Mandatory Technical Advice

sections 4.04, 7.01

Paperwork Reduction Act

section 22

Perjury Statement

sections 14.10, 16.10

Power of Attorney

section 10.06

Public Disclosure under § 6110

deletion statement
required

section 10.04

exception when § 6104 applies

section 10.03

failure to submit

section 11.06

notice of intention
to disclose

section 17.04

protesting deletions not made

sections 16.12, 17.05

Representatives

sections 14.08, 16.10

Retroactive Effect

in general

sections 18.02-.06

on letter ruling

section 18.06

request to limit retroactivity

section 19

employee plans determination letters

section 19.07

exempt organization matters

section 19.08

format of request

sections 19.03, 19.04

scheduling conference

sections 14.07, 14.09, 19.06

Revenue Rulings

effect on continuing
transaction

sections 18.04, 18.05

request to limit retroactivity

sections 19.01-.05

Section 301.9100-1 Relief

section 6

Status of TAM

to EP or EO Examinations
Area or EP or EO Determinations or appeals office

section 15.02

to taxpayer

section 15.01

Where to Send

additional information

section 16.10

technical advice request
from appeals office

section 10.05

technical advice request
from EP or EO Examinations or EP or EO Determinations